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Revitalizing Democracy: The Case for Keeping Score—A Commentary by Heather K. Gerken

The following commentary was published in The American Prospect in January 2009.

Revitalizing Democracy: The Case for Keeping Score
By Heather K. Gerken

Heather K. Gerken, the J. Skelly Wright Professor of Law at Yale Law School, is an expert in election law. Her book on election reform, The Democracy Index: Why Our Election System is Failing and How to Fix It (Princeton University Press), comes out this spring.

A democracy index could push states toward more ambitious electoral reforms.

In 2000, Americans finally learned what Roy Saltman calls "election administration's family secret": Our election system is run badly. Election problems prevented us from learning the identity of our 43rd president until weeks after the election. Things got so bad that Fidel Castro, admittedly a man not cursed with self-awareness, offered to send election monitors to Florida. We were an international laughingstock.

Eight years later, too little has changed. On Election Day, we saw the same problems we saw in 2000 (and 2004): long lines, registration problems, a dearth of poll workers, discarded ballots, machine breakdowns. The only difference is that this election wasn't close enough for those problems to matter. The system remains chronically underfunded and poorly run.

Our system is resistant to change because of an unusual combination of localism and partisanship. Unlike most developed democracies, state and local officials run our elections, leading to what one scholar has termed "hyper-decentralization." Many of those local officials have strong partisan ties. At worst, officials administer elections in a partisan or unprofessional fashion. At best, they have few incentives to invest in the system and lots of reasons to resist reform.

The problem is hardly insurmountable. But we need to align the interests of politicians with the interests of voters. We need to give local officials a reason to pay attention.

Creating a democracy index--an idea that President-elect Barack Obama and Sen. Hillary Clinton have both included in proposed legislation--would be a useful first step. Such an index would rank states and localities based on how well they run elections, functioning like the U.S. News and World Report rankings for colleges and graduate schools. It would focus on issues that matter to all voters: How long did you spend in line? How many ballots got discarded? How often did voting machines break down? The index would tell voters not only whether things are working in their own state but how their state compares to its neighbors.

By providing the right information in the right form, a democracy index has the potential to create an environment that is receptive to change. Reformers can take it from there.

REFORM IS A NOTORIOUSLY crisis-driven industry, and there have been plenty of crises to put election reform on the legislative agenda. The public is well aware that we have a problem, and the cause--improving our democracy--should appeal to all. Yet we've made very little progress in fixing our election system since 2000. Even the Help America Vote Act, Congress' response to the 2000 crisis, was relatively toothless. While the act provided much-needed funding for machines and made some modest changes to the balloting process, it addressed only the symptoms of the Florida debacle, not its root causes: inadequate funding, amateur staffing, and partisanship.

As the last eight years make clear, we have a "here to there" problem in election law. We know what's wrong with our election system (the "here") and have lots of ideas about how to fix it (the "there"). But we haven't figured out how to get from here to there --how to create an environment in which reform can actually take root. Reform advocates work tirelessly to help specific projects blossom. But they are fighting this battle on difficult ground, and almost no one is thinking about how to change the terrain itself. We've spent too much time identifying the journey's end and not enough time figuring out how to smooth the road that leads there. The first step in fixing our election system is solving the "here to there" problem.

A democracy index would help us get from "here to there" because it harnesses politics to fix politics. Most reform proposals ask politicians to ignore their self-interest and do the right thing. Little wonder they haven't got much traction. The index, in contrast, would work with political incentives, not against them. By exposing the flaws in the system, it ought to unleash a new political dynamic, one that pushes toward rather than against reform.

The main reason that political incentives currently run against change is that election problems are largely invisible to voters. While problems in our voting system occur with regularity, voters become aware of them only when an election is so close that they affect the outcome, as with Florida's hanging chads in 2000. That's like measuring annual rainfall based on how often lightning strikes. As a result, voters have only a haphazard sense of how well the system works and no comparative data to tell them which states are run well and which are run poorly.

The invisibility of election problems reduces the incentives for even reform-minded policy-makers to invest in the system. States and localities in a federal system are supposed to compete to win the hearts and minds of citizens. But they will only compete along the dimensions that voters can see. When election problems are invisible, localities will invest in projects that voters can readily observe--roads, new schools, cops on the beat.

Even when election problems become visible, voters still find it hard to hold anyone accountable. That's because debates over reform are inaccessible to them. Fights over registration systems or the balloting process involve a sea of incomprehensible detail that would try the patience of even the wonkiest voter. Reformers point to a problem--an inadequate registration system, outdated machinery, a poor system for training poll workers--and argue that the state can do "better." Election officials respond by talking about regulations issued, resources allocated, and staff trained. Reformers talk about discarded ballots or unregistered voters. Election officials assure us these numbers are normal.

For voters, these debates are reminiscent of that famous Far Side cartoon about what dogs hear. The clueless owner prattles away to his pet, and essentially all that the dog hears is "blah, blah, blah, Ginger, blah, blah, Ginger, blah." So what do voters hear when reformers and election administrators go at it? A stream of technical details, occasionally punctuated with grand terms like "the right to vote" and "democracy."

VOTERS ARE NOT STUPID. But none of us is born into the world with a strongly held intuition about whether direct-recording electronic (DRE) voting machines are a good idea or whether provisional ballots should be counted only if they are cast in the correct precinct. Voters need a yardstick to help them figure out who is right.

In a world where voters don't have a yardstick for judging fights over reform, election officials have few incentives to improve. Think about the state's chief election official, usually the secretary of state, a position that is often a stepping stone for higher office. In a world where voters have no means of gauging how well the system is working, what matters most for the many secretaries of state who want to run for higher office is political support, not professional performance. The fate of a secretary of state depends on her standing within her party, which will provide the support for her next campaign.

The current state of affairs creates the wrong kind of incentives for secretaries of state (and the many elected officials serving below them). They may be tempted to administer elections in a partisan fashion. At the very least, these officials are under intense pressure not to lobby legislators from their own party for much-needed resources--it's the rough equivalent of airing one's dirty laundry. Nor are elected officials likely to be successful in lobbying for resources from members of the other party. Why, after all, would you want to give a potential star from the other party a leg up, especially if voters won't ever hold you accountable for starving the election system of funds?

By making election problems visible and giving voters a yardstick for judging reform fights, a democracy index should alter the incentives of secretaries of state and legislators alike. A democracy index would not only let voters see the problems that routinely occur but cast those issues in explicitly competitive terms. By ranking states and localities against one another, the index should shame election officials into doing the right thing.

The index would also help voters do a better job of refereeing reform debates. Rather than relying on vague assertions that we could do "better" or allowing voters to get bogged down in technical details about how the ideal system would be run, the index would give voters information on something they can evaluate: bottom-line results. It also would present the data by distilling it into a highly intuitive, accessible format: a ranking. Moreover, because the index grades election systems "on a curve"--measuring them against one another instead of against some ideal standard--voters could feel confident that they were rewarding those who have succeeded while holding those on the bottom rung to a realistic standard of performance.

If the democracy index provides voters with a useable yardstick, it ought to generate a new political dynamic that is more receptive to reform. Imagine, for instance, what would have happened to Kenneth Blackwell, the much-criticized Ohio Republican secretary of state who ran for governor in 2006, if his opponent could have shown that Ohio was one of the worst-run election systems in the country. Surely the Democrats would have trumpeted those results. You can also be sure that secretaries of state across the country would take notice of that campaign. The democracy index would push political parties to work for reform.

The democracy index is quite different from the usual reform proposal. It does not create national performance standards. It does not take power away from partisan officials. It does not even endorse a set of best practices for administering elections. Instead, the index pushes in the direction of better performance, less partisanship, and greater professionalism. It does so not by trying to resist the fierce push against change generated by our political system's twin engines--partisan warfare and local competition--but by harnessing partisanship and localism in the service of change. It is a modest reform that makes bigger, better reform possible. It will help us get from here to there.